Estate Planning

An estate plan can help you plan for many different circumstances wherein you may no longer be in control due to death, disability or incapacity.  If you, like most people, have your own ideas for how you would want your hard-earned assets distributed, you should consult with a skilled estate planning attorney.  A good estate plan will ensure that the bulk of your assets go to your chosen beneficiaries, minimizing administrative costs, handling fees, taxes, and also puts in place provisions pertaining to your own life, health and care in the unfortunate situation where you may not be in a position to make those decisions for yourself.

Most importantly, drafting a comprehensive estate plan will give you peace of mind.

5 Reasons to Have an Estate Plan
    • To ensure that your hard earned assets go to beneficiaries of your choice
    • To ensure that your chosen beneficiaries receive your assets in a timely manner
    • To avoid probate fees and costs reducing the value of your estate
    • To minimize your estate taxes
    • To plan for unforeseen circumstances such as disability, illness or for the care of young children
What Happens to my Estate When I Pass Away?
If a person dies without having done any preparation (i.e. without having drafted a will or trust), the State steps in and will make your distribution decisions for you. A lifetime of work and preservation of assets for loved ones could be rendered meaningless, as the State will use the statutory scheme for defining who will receive your hard-earned assets.

Having a will is better than having done no estate planning at all. A will allows your assets to be disbursed to beneficiaries of your choice, but it does not enable your estate to escape the process of probate — and, as we will find out, probate is something you want to avoid if you can.

What is Probate?
Probate is a costly and time consuming process by which the Court ensures that a decedent’s creditors are paid and their assets distributed to the appropriate beneficiaries. Probate has a number of disadvantages, prime among them the costs and the delays associated with the process — it can take anywhere from nine months to two years before the decedent’s estate can be settled. In the meanwhile, the beneficiaries have to wait, compounding the emotional loss and sense of financial insecurity that families often find themselves facing after the death of a loved one.

The escape probate, you will have to draft a trust.

What is a Revocable Living Trust and How Does it Benefit my Estate?
A Revocable Living Trust is a mechanism whereby you can place all your assets in the name of a Trust, e.g. The James Brown Family Living Trust, during your lifetime. The person setting up the Trust is referred to as the Trustor or Settlor. The person managing the Trust is known as the Trustee. The person(s) who will receive the assets of the Trust are the beneficiaries.

Trust property is held by the Trustee in trust for the Beneficiaries.

Typically, during the lifetime of the Trustor (the person creating the Trust), the Trustor, Trustee and the Beneficiary are the same person. In the event of incapacity or inability to manage their own affairs, the Successor Trustee can take over management of the Estate thereby avoiding the need for conservatorship or guardianship. Upon the Trustor’s death, the Successor Trustee will take over management of the Trust, following all the rules laid out in the Trust, paying off the debts, and ensuring distribution of the assets to the proper beneficiaries.

By putting your assets in the Trust, you will be able to distribute your assets to your chosen beneficiaries, avoid the unnecessary frustration, delay, and cost of the court probate process, minimize your estate taxes, and prepare efficiently for various unforeseen challenges that life may throw your way.

The beauty of setting up a Revocable Living Trust is that you will have the exact same level of control over your assets as you do now (i.e. you can sell, lease, increase, decrease the assets as you may wish), but the assets will be in the name of the Trust.

How Can I Protect my Interests During Periods of Incapacity?
In the event you are unable to communicate your wishes yourself due to incapacity or illness, your Advance Health Care Directive would come into effect. An Advance Health Care Directive serves two purposes:
1) to clearly state the person’s wishes and feelings regarding life support and health care.
2) to nominate the person who will communicate these wishes on your behalf.

To control your financial affairs in such circumstances, you must execute a Durable Power of Attorney.  When a person executes a Durable Power of Attorney, he is appointing a person to make financial decisions on his behalf if incapacitated or rendered, in some way, incapable of making his own decisions.

Estate and Gift Taxes
Estate Planning serves many useful purposes, and is a critical tool for distribution of assets regardless of the size of your estate. If you have a large estate, however, the tax issues become a more critical aspect of estate planning.

Estate tax is the tax on a decedent’s assets at the time of his death, due nine months after death at a current rate of 35%. The taxable estate includes all the assets held by the decedent at the time of his death and include items such as real estate, stocks and bonds, bank accounts, retirement accounts and the assets in a living trust. According to the current law, the combined Estate and Gift tax exemption amount is set at $5.25 million, but these laws are extremely politically sensitive.

The exemption rate undulates frequently between $1 million and $5 million, and it is likely that Congress will repeal the current tax exemption amount in the coming years. It is crucial to have attorneys, like those here at the Dandavati Law Group, who are skilled at drafting estate plans that circumvent needless taxation.

A few carefully drafted documents today can avoid untold expense, stress, and potential heartache for your loved ones in the future.  Contact us today to begin planning your estate.

The information presented herein is solely to provide you with some foundational knowledge and is not meant to constitute specific legal advice. Your lawyer is in the best position to help you understand how the law applies to the specific issues surrounding your case.
